Sunday, February 19, 2006

The delights of the British constitution

Read this passage from Locke's First Treatise of Government, and tell me there aren't any parallels. It's late and I'm a bit drunk, so I may well be reading too much into it. But the parallels are there:

"Since there have been a generation of men sprung up in the world that would flatter princes with an opinion that they have a Divine right to absolute power, let the laws by which they are constituted and are to govern, and the conditions under which they enter upon their authority be what they will, and their engagements to observe them never so well ratified by solemn oaths and promises, they have denied mankind a right to natural freedom, whereby they have not only, as much as in them lies, exposed all subjects to the utmost misery of tyranny and oppression, but have also so unsettled the titles and shaken the thrones of princes... as if they had designed to make war upon all government and subvert the very foundations of human society."(John Locke - An Essay Concerning False Principles, Chapter I: Of Slavery and Natural Liberty)

This is an attack on Divine Right theory and absolute monarchy written in the wake of a Civil War that kicked off (in large part) over misuse of sovereign power, and designed to justify a military coup that was launched for the same reason. It is very much of its time.

Substitute "Divine Right" for "right by election" (the famous "democratic mandate"), and "absolute monarchy" for "the right to do what we want as long as we have a sufficient majority in parliament". It's not a perfect parallel, to be sure, but there are surely similarities.

The thing to remember is that in Britain there are still, even in the 21st century, no checks on the power of Parliament other than the right of the monarch to refuse the royal assent to any Act passed by the two Houses. This right to refuse royal assent, commonly called the Royal Veto, has not been used in nearly 300 years. As such, it effectively no longer exists.

The Royal Veto is, however, the ONLY check we currently have on the ability of any government with a sufficient majority to pass any law it likes. This is very easy to foget. Many deny it. But in terms of strict constitutional law, it remains entirely true.

Personally, I find this terrifying - especially after the events of the last week.

Without the check of the Royal Veto, Parliament - not the people - is sovereign. Which means there is no check on Parliament whatsoever. Parliament can alter any part of the constitution whenever it likes. If Parliament becomes complacent, if a government has a sufficient majority in Parliament, a government can do whatever it likes.

None of our freedoms are sacred. None are inviolable.

As long as the government has a sufficient majority, Parliament can pass any laws it likes - including a law which abolishes Parliament itself, abolishes elections, and sets up a dictatorship.

Hey, look... you know - what's more important? The right to hold elections and have a say in how the country is run, or the right not to be blown to pieces by EEEVIL TERRORISTS?

Under British constitutional law, the government has the right to abolish elections if it can pass legislation amending the law stating that elections need to be held. Under British constitutional law, were Tony Blair to get a bill through Parliament that abolished Parliament itself, we would have no longer have the right to elect our leaders or determine our laws, and no legal right to dispute the removal of this power..

The Legislative and Regulatory Reform Bill - which proposes bypassing parliament and allowing ministers, who have not been elected to the offices they hold and some of whom have never been elected to any office whatsover (e.g. the Lord Chancellor or Lord Adonis), to amend legislation and bring in new laws as they see fit - is the first step down this path.

"Fortunately, of course, we're signatories to the Council of Europe and even the EU, both of which require democracy"

The thing i find most horrifying is thatt his country seems to be full of indoctrinated brainwashed drones who havent got a clue what they are talking about!, but heres the 'real' disturbing part, they think that they do!.

I think you will find the vast majority of England's problems stem from the EUSSR, and their puppet Labour government who are simply implimenting anything they are told to impliment by Brussels.

CoE - set up after the war, largely by Churchill and the bloke who did the Nuremburg War Crimes trial, basically to export British legal and human rights traditions to a continent in need of them, in the form of the ECHR.

In virtually every way it is a negation of the principles and practice of Nazism. Need I point out that this is a Good Thing and, indeed, one of Britain's great gifts to the world in the last 60 years.

The positions are now rather reversed and, together with the House of Lords, it acts as one of the few checks on supreme executive power.

It's nothing to do with the EU, except that EU membership depends on being a CoE member, which implies democracy under Article 3. The country seems to be full of indoctrinated drones who are so full up with hatred of 'Brussels' that they don't bother to educate themselves about European institutions and how they relate to each other. Shame, really.

Back to the erosion of democracy. Annoyingly, Article 3 doesn't say anything about elections being 'representative', but I've long thought that First Past The Post is open to challenge here, since it demonstrably doesn't give 'free expression of the opinion of the people', as the Article puts it. Parliament may be freely elected, but it isn't the opinion of the people that Labour has a 20% higher share of the seats than share of the vote.

Anyway, if Future British Dictator wanted to abolish elections, he'd have to declare a 'state of emergency threatening the life of the nation' and notify the CoE of his intention to withdraw from part of the ECHR. He'd then have to pass an Act (let's call it the Civil Contingencies Act 2004, for argument's sake) allowing him to suspend any Act of Parliament at a stroke, including the Representation of the People Act.

David Blunkett has already done both of those. Lord knows what he'd have got done if if he'd been paying attention to his job instead of shagging his way round London.

If you can name me any piece of EU legislation which requires us to implement ID cards, suspend habeas corpus or clamp down on free speech, I'd be fascinated to learn of it.

As it stands, the only time the EU has even discussed anything as illiberal as Blair's biometric ID database was when Blair introduced it for debate as part of his data retention plan. The European Parliament rejected it outright.

As MatGB says, it is our membership of trans- and supra-national bodies which gives us protection from tyranny. They actually provide very little protection in their current set-up (hence Blair being able to suspend the Human Rights Act and the like), but without them, we'd have nothing.

Now, I'm not convinced that Parliament can abolish itself in a meaningful way, and for the same reason that for a long time it was held that Parliament could not redefine itself in a meaningful way. Of course, that particular view has been laid to rest by Jackson v Attorney-General (The hunting ban/Parliament Acts case), but it does not mean that if Parliament abolished itself, the Queen could not reconstitute itself.

The reason for that is that the courts interpret the law, and enforce it, with the co-operation of the police and other forces of the state. What the courts recognise as the source of laws is ultimately a matter of political fact - if the courts recognise an act passed by a reconstituted Parliament, then that act would be the law. The actual enforcement would rather depend on to whom the police, and the state's other armed forces, such as the military, customs officers, and the like, recognised as being the legitimate authority. And any question about that would by definition be a revolutionary situation.

Having said that, I do believe that we need a written constitution which is very tightly drafted to prevent expansion of legislative power seen in both the USA and the EU, with a very powerful, very ideologically committed constitutional tribunal able to keep the legislature and central organs in check.